His permanent duty is appointed by the Reich Minister of Justice.
"The Reich Public Prosecutor exercises the official supervision over the Public Prosecution at the People's Court."
I shall skip the rest of the paragraph and continue:
"The Reich Public Prosecutor will regulate the signatory powers of the Public Prosecutors subordinate to him. Such ruling requires the approval of the Reich Minister of Justice."
I offer this document as Exhibit No. 19 for identification.
THE PRESIDENT: Let it he marked.
DR. GRUBE: On page 59 of the document book, document No. 11 begins. It is an extract from the law of on the 31st amendment of the Salary Law of 9 December 1937. I quote from page 59; and I may direct the attention of the Tribunal to the place which begins with the words:
"Appendix 2 Reich Salary Order B Fixed Salary Wage Group 3-A 24 000 RM Lodging Allowance:
I "Chief Reich Public Prosecutor at the Reich Supreme Court "Chief Reich Public Prosecutor at the People's Court.
Wage Group 7 a 1600 RM Lodging allowance:
II "Reichsgerichtsraete "Reich prosecutors at the Reich Supreme Court, "Volksgerichsraete "Reich Public Prosecutors at the People's Court.
"Wage group 8 14 000 RM Lodging Allowance:
II "Attorneys General at the Appellate Courts, "Attorneys General at the District Court Berlin."
THE PRESIDENT: I don't think you need read that. In fact at the present we see no relevancy to it at all.
DR. GRUBE: I only want to read the last sentence.
THE PRESIDENT: I don't want you to read any more of that. It seems immaterial to us. Offer it in evidence and we will consider it and as to it's materiality.
DR. GRUBE: I offer it as Exhibit No. 20.
THE PRESIDENT: Let it be marked for identification.
DR. GRUBE: The next document is on page 61 of the document book. This is document 263. May I say here that this document is mistakenly listed in the table of contents as document No. 12. Therefore, I request the Tribunal to correct the table of contents at the place where it says: "Document No. 12," to read "document No. 263.
Document No. 263 is an executive order of the Reich Minister of Justice of the 24 December 1937, regarding the constitution of the People's Court and I quote:
"In virtue of the law on the thirty-first amendment of the Salary Law of 9 December 1937, the Chief Reich Public prosecutor at the Reich Supreme Court, the Reich Public Prosecutor as leader of the prosecution at the People' s Court the official title of 'Chief Public Prosecutor of the Reich at the People's Court.' In accordance with that the designation of the two Prosecutions in future reads "Reich Public Prosecution at the Reich Supreme Court" and "Reich Public Prosecution at the people's Court.'" I offer this document as Exhibit No. 21.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document No- 191 on page 62 of the document book is the law on the distribution of duties to the Courts.
May I direct the attention of the Court to Article I of this law and I quote:
"Before the commencement of the working year and throughout its duration the duties are to be distributed among the judges of a Local Court, among the chambers of the District Courts and among the Divisions of the Appellate Courts of the people's Court and of the Reich Supreme Court and the presiding Judges and permanent members of the individual chambers and senates as well as the official deputies in the contingency of a judge being prevented from appearing to be appointed."
I offer this document as Exhibit No. 22 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: On page 65 of the document book, document No. 4 begins. This is a copy of the ordinance on the competence of criminal courts, et cetera, of the 21 February 1940. First I would like to make the following remarks in connection with the document book. In the English document book 2 this document has already been reproduced as a copy of the law of the 21 February, 1940. In the English document book, the document, however, contains the regulations which at that time, in 1940, were not yet contained in the ordinance on the competence of the courts. May I point out that article 5 of this ordinance, which is on page 32 of the English document book and there has nine numbered paragraphs, nine items for which the People's Court was supposed to have been competent already in 1940. Eight and 9, however, were not yet contained in the ordinance on the competency of 1940.
This is very important because Nos. 8 and 9, which were introduced only three years later are the regulations regarding the competency of the People's Court is cases of undermining of military strength. Since in the English document book this document is not correct to that extent I shall again introduce this document as it is contained in the Reich Legal Gazette of 1940. May I direct the attention of the Court that according to this edition of the law of 21 February 1940, Article 5 contains only seven items for which the people's Court is competent. Furthermore, in the English document, is the following passage and I quote:
"In the case of acts which according to Article 82, 83, 90b to 90e, 92 of the Reich Penal Code are punishable, the Chief Reich Public Prosecutor at the people's Court can hand over the prosecution to the Attorney General.
"The People's Court, in matters described in Par, 2, can, with the consent of the Chief Reich Public Prosecutor hand over the proceedings and decision to the Appellate Court, as long as the main trial has not been ordered to be conducted by the People's Court.
I quote:
"In criminal cases belonging to the competence of the People's Court or the District Court of Appeal, the indictment may be raised before these courts. This also applies when a criminal act belonging to their competence at the same time fulfills the conditions of another criminal action."
"Action may be brought against another criminal act before these courts only when it is connected with a criminal case belonging to the competence of the court, when an all-inclusive punishment is to be given, or when an act has been committed in a drunken condition, which would otherwise belong to the competence of this court."
May I also direct the attention of the Tribunal to Section II, on page 68 of the document book? This section concerns the Special Courts. I quote from Article 12:
"The prosecuting authority is the prosecution at the District Court in the area of which Special Court is situated."
May I continue with Section IV, Article 32, at page 73 of the document book? I quote:
"If the-
THE PRESIDENT: You are still dealing with document No. 4?
DR. GRUBE: Yes. I repeat:
"Cases of Necessary Defense:
"The President appoints a defense counsel for the accused:
"1. If the trial takes place before the Special Penal Division of the Reich Supreme Court, the People's Court, or the District Court of Appeal;
"2. If the action in question is liable to capital punishment or penal servitude for life;
"3. If the action in question is liable to be punished with penitentiary sentence and the appointment of a defense counsel has been moved by the public prosecutor."
That was on page 71.
May I further direct the attention of the Tribunal to Part V of these regulations? They deal with the nullity plea. I quote Article 34, on page 72 of the document book:
"Prerequisites for the Nullity Plea:
"The Chief Reich Public Prosecutor of the Reich Supreme Court can file a nullity plea against effective sentences by the District Court, the Penal Chamber and the Special Court within one year after the date when the sentence became effective, if this sentence is found to be unjust by virtue of a mistake in the application of the law to the established facts."
Article 35. "Decision concerning the Nullity Plea:
"The nullity plea must be submitted in writing to the Reich Supreme Court. This will decide on it by pronouncing a sentence following a trial; with the approval of the Chief Reich Public Prosecutor it may decide also by writ without trial."
THE PRESIDENT: I suggest to you that you are reading matter which I certainly recognize as having been read to us before, and which we have read before. These last matters that you have just read--we have heard them before, and you waste your time by reading them again.
DR. GRUBE: Your Honor, I introduced the last-read quotations because in the English document book, where it is stated, in regard to this regulation, that the Chief Reich Public Prosecutor of the Reich Supreme Court can file a nullity plea, the words "of the Reich Supreme Court" are missing. That is why I introduced this document again.
I offer this document as Exhibit 23 for identification.
THE PRESIDENT: If there is one phrase that you think should be put in--I will repeat, if there is one phrase that you think should be added to a previous document, merely call our attention to that. Don't read at such great length matters which we have already gone into quite thoroughly. The document, if received in evidence--I say, if the document is received in evidence, it is in just as completely, as fully, as if you had read every word of it.
The reading has no legal relevancy to the admissibility of the document.
DR. GRUBE: Your Honor, as I said, in document book II of the Prosecution, these documents are contained only in part, and there are a great many omissions.
THE PRESIDENT: No. 23 will be marked for identification.
DR. GRUBE: The next three documents refer to substantive criminal law of the People's Court. Without reading them, I merely introduce them.
First we are concerned with document 185, and I offer it as Exhibit 24 for identification.
THE PRESIDENT: Let it be marked for identification.
DR. GRUBE: The next document is 250, on page 85. I offer it as Exhibit 25 for identification.
THE PRESIDENT: Let it be marked for identification.
DR. GRUBE: Furthermore, as Exhibit 26, I offer document 251, for identification.
THE PRESIDENT: Let it be marked for identification.
DR. GRUBE: Document 194, on page 90 of the document book, is Article 94 of the Reich Criminal Code. As far as I know, it has not been introduced so far. It concerns one of the regulations for which the People's Court was competent; it deals with the prosecution of criminal acts directed against the Fuehrer.
I offer this document as Exhibit 27 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Furthermore, I offer for identification, as Exhibit 28, document 197, on page 91 of the document book.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 198, on page 94 of the document book, contains Article 139 of the Reich Penal Code, wherein, in certain cases, the People's Court is competent for sentences.
I offer the document as Exhibit 29 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document No. 199 contains Article 5 of the order for the protection of the people and the State. This was also under the competency of the People's Court in certain cases. I offer it as Exhibit 30, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 200, at page 96 of the document book, is an excerpt from the law against economic sabotage. I also offer it for identification as Exhibit 31.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 5, on page 97, is an excerpt from the ordinance concerning the extended competence of the People's Court, of December, 1941. The document shows that in December of 1941 the People's Court also became competent for the trying of espionage cases.
I offer the document as Exhibit 32 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: As the next exhibit I offer document No. 9, on page 98 of the document book. That is the ordinance which I have already mentioned before, concerning the supplementation and amendment of the decree on competence of 29 January 1943. I quote:
"Article 1.
"The sphere of competence granted to the People's Court is extended insofar as the following numbers 8 and 9 are added to Article 5, paragraph 1 of the ordinance of 21 February 1940:
"8. Public undermining of the defensive power (Article 5, paragraph 1, No. 1, subparagraph 2 of the Ordinance concerning the extraordinary war penal law of 17 August 1938), if the Chief Public Prosecutor at the People's Court considers a sentencing by this court as adequate."
I continue, now, in the third to the last line:
"In cases which are punishable under the law according to articles 82, 83, 90b to 90f, 91b, 92 of the Reich Penal Code, or according to Article 5, paragraph 1, No. 1, subparagraph 2 of the ordinance concerning the extraordinary war penal law of 17 August 1938, the Chief Reich Public Prosecutor at the People's Court can refer prosecution to the General Public Prosecutor."
I offer this document as Exhibit 33 for identification.
THE PRESIDENT: Let it be marked for identification, and we will recess until 1:30 this afternoon.
(A recess was taken until 1330 hours)
AFTERNOON SESSION (The hearing reconvened at 1330 hours, 23 July 1947)
THE MARSHAL: The Tribunal is again in session.
DR. GRUBE: I would ask you to permit me to continue with introducing my documents. The last document which I introduced was Document 9 on page 98 of the German Document Book, Volume 1. The exhibit number was 33. That document was an extract from the Competency Order.
The two documents which are following now describe the substantive penal law on the regulations which were mentioned in the document I have just referred to. This is Document 195 on page 100 of the German Document Book. This is an extract from the so-called Ordinance of 17 August 1938 concerning extraordinary war penal laws. May I call the attention of the Tribunal to the second paragraph, which explains the facts of espionage activities. Further I would ask you to direct attention to Paragraph 5, undermining of the defensive strength. I quote from Paragraph 5 Section 2 and 3 on Page 102 of the German Document Book. It is also 102 of the English Document Book as Paragraph 1 is already contained in the English Document Book.
"(2) In less severe cases a sentence of penal servitude or imprisonment may be imposed.
"(3) Besides the death penalty or punishment of penal servitude the confiscation of all personal property is admissible."
I quote further Paragraph 10, Article 10, Authority to Make Alterations.
"The Chief of the Supreme Command of the Armed Forces will be authorized to issue explanatory details for this ordinance and to bring about its adaptation to the existing law. As far as the conduct of war requires it, he will also be authorized to make alterations and supplementations."
I am offering this document as Exhibit 34.
THE PRESIDENT: It will be marked for identification.
DR. GRUBE: The next document I wish to offer is Document 201 on page 104 to 106 in the German Document Book. This is an excerpt from the Competency order of 21 February 1940.
I quote from Paragraph 38, III. Paragraph 3 to 5 of the lav for the alteration of penal law provisions and procedure in penal law dated 24 April 1934. This is replaced by the following:
"Art. 3. As far as nothing different has been decreed the regulations of the Law concerning the constitution of courts and the code of criminal procedure will have to be applied in first proceedings carried on before the People's Court and before the Appellate Court. The People's Court and the Appellate Court will also make the decisions mentioned in Art. 73. paragraph 1 of the law concerning the constitution of courts."
I will now quote from Article 41, Authorization.
"The Reich Minister of Justice will be authorized to issue all. legal and administrative regulations necessary for carrying out or supplementing this ordinance. He also will be authorized to decide any arising doubts and problems through channels of administrative procedure."
I am offering this document as Exhibit 35.
THE PRESIDENT: Let it be marked for identification.
DR. GRUBE: I have now finished with Volume 1. May I ask the Tribunal now to turn to Volume 2-A. Document 215 on page 1 contains Article 157 of the Reich Code for Criminal Procedure. I am introducing this document for the reason that the German Penal Code and the German Law for Criminal Procedure uses technical expressions in reference to t he person against whom proceedings are pending of a nature which may possibly be unknown to an outsider. I am quoting from Article 157.
"According to this law an arraigned person against whom a trial has been resolved."
I am offering this document as Exhibit 36 for the purpose of identification.
THE PRESIDENT: It will be marked for identification.
DR. GRUBE: Document 243 on Page 2 of the Document Book is also offered for the purpose of explaining technical expressions which are of importance in the German penal law. There is a difference in German substantive law and law of procedure between crime, offense, and transgression. Document 243 contains Paragraph 1 of the Penal Code:
"An act punishable by death, penitentiary or military confinement exceeding 5 years is a crime.
"An act punishable by military confinement up to five years, imprisonment or fine exceeding 150 Reichsmark, or by unrestricted fine is an offense.
"An act punishable by detention or fine up to 150 Reichsmark is a petty offense."
I am offering this document as Exhibit 37 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: The next document, 237. is an excerpt from the Judicature Act of 1847 and explains the position of the Public Prosecutor towards the Court. I am quoting Paragraph 150 and 151:
"The Public Prosecution in carrying out its functions is independent of all Courts."
"Article 151: Public Prosecutors may not perform the duties of a Judge. Neither must disciplinary authority over the Judges be relegated to them."
I am offering this document as Exhibit 38.
THE PRESIDENT: Let it be marked.
DR. GRUBE: The next document, 145, is an excerpt from the commentary on the German Code of Criminal Procedure by Loewe-Rosenberg. May I draw your attention to the introductory sentences which I quote:
"The structure of the Public Prosecution is adapted to that of the regular Courts, and the rules of factual and regional jurisdiction apply likewise to the officials of the Public Prosecution (Article 142 and Article 143 respectively). Therefore the Prosecution is divided into a number of independent authorities approximately corresponding to the number of Courts.
The standards governing the factual jurisdiction of the trial courts also apply to the factual jurisdiction of the officials of the Prosecution."
I am offering this document as Exhibit 39 for identification.
Document 146 on Page 5 of the German Document Book also refers to the question of the factual competency of the Public Prosecution. It is in accordance with the contents of the previous document. I am offering this document as Exhibit 40 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 147 on Page 6 of the German Document Book is an excerpt from the text book by Hippel on German Criminal Procedure. May I draw the attention of the Tribunal to the following passages:
"The Public Prosecution and the Court:
"1. They face each other as independent authorities, each one legally organized in itself and neither one subordinate to the other. This is clearly expressed by the law: compare on the one hand the Law Concerning Organization of the Judiciary, Article 150, 'The Public Prosecution is, in the performance of its official duties, independent of the courts', and on the other hand, Article 151, 'The Public Prosecutors may not perform the duties of a Judge, nor may they be charged with any disciplinary authority (Dienstaufsicht) over the Judges'".
May I now draw the attention of the Tribunal to the comments in Note 1 concerning this quotation where it says:
"The above Article 151 is expressly directed against the French system of disciplinary authority."
I am offering this document as Exhibit 41 for identification.
THE PRESIDENT: Let it be marked. Dr. Grube, a question for information. These treatises, do they show the dates at which they were written in your exhibits?
DR. GRUBE: Yes.
THE PRESIDENT: They do.
DR. GRUBE: Yes, Your Honor. That shows from the headline of the document. It shows there when the book concerned was published and where it was published.
THE PRESIDENT: Thank you very much.
DR. GRUBE: The following document mainly gives excepts from the Reich Penal Code of Procedure. May I say that in Document Book II of the Prosecution, no single provision of the Reich Penal Code of Procedure is contained. However, I consider it important to introduce the most important provisions in my document book since problems concerning procedure have been under discussion here. Document 213 contains the provisions concerning the Legality Principle; in particular, Article 152. I quote: (We begin with Paragraph 151.)
"Legal investigations may start only if an indictment has been filed.
"Article 152: The Public Prosecutor is authorized to file an indictment. He must, if the law does not state otherwise, intervene in all acts punishable by Criminal Courts which have to be prosecuted under the law, provided that adequate factual reasons are evident.
"In the Case of those punishable offenses, which will only be prosecuted upon formal request by one of those concerned, the Prosecutor can, even though the formal request has been filed, refrain from prosecution if there is no public interest in the prosecution."
MR. KING: May I inquire of the Court if Document 213 appears in the Court's Document Book II-A?
THE PRESIDENT: Not at the page where it's supposed to appear.
MR. KING: It's supposed to appear on Pages 8 and 9, according to the Index, but I fail to find it in my book at all.
DR. GRUBE: May I explain? I have now found that evidently in mimeographing the document which appears here on Page 8, and which is identical with my Document 213, it has erroneously been marked as 147. This document which begins on Page 8 should have the number 213.
THE PRESIDENT: We have made the correction.
DR. GRUBE: I am offering this document for identification as Exhibit 42.
THE PRESIDENT: Let it be marked.
DR. GRUBE: The next document is 216. This too is an excerpt from the Reich Criminal Procedure Code.
May I draw the attention of the Tribunal to Paragraph 160. I quote:
"As soon as the Prosecution, through a report or otherwise, receives information about a suspected punishable offense, it has to investigate the facts in order to decide whether an indictment should be filed.
"The Prosecution has to investigate not only the incriminating, but also the exonerating circumstances, and is responsible for the recording or other means of preservation of evidence which might otherwise not be available at the time of the trial."
I am now going to quote from Article 161:
"For the purposes described in the previous article, the Prosecution can demand information from all public authorities, and can either itself, or through the authorities and officials of the police and security service, make investigations of every nature, with the exception of examinations of witnesses under oath. The authorities and officials of the police and security service have to comply with the demands or orders of the Prosecution.
"Article 162: If the Prosecution deems it necessary that a certain investigation is to be made to which a Judge only is entitled, it makes the appropriate request to the Judge of the local Court of the District in which this investigation is to take place. The Judge of the local Court has to determine whether the requested investigation is permitted by the law in view of the circumstances of the case."
I am now quoting from Article 166:
"If the local Court Judge examines the indicted person and finds certain facts, the local Court Judge has to start investigations, if the evidence which has come to light may provide reasons for releasing the indicted person."
This document, as I said before, refers to the preliminary proceed ings.
I am offering this document as Exhibit 43.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 238 on Page 13 of the German Document Book contains Article 152 of the Judicatory Act, and says:
"The officials of the Police and Security Service are assistants of the Public Prosecution."
I am offering this document as Exhibit 44 for identification.
THE PRESIDENT: Let it be marked.
MR. KING: In the Prosecution's Document Book II-A for the defendant Lautz, on Page 13, the document number appears to be 216. Dr. Grube informs me that that should be instead of 216, on Page 13, the Document No. 238.
THE PRESIDENT: We will make the correction.
DR.GRUBE: Document 238 bears the Exhibit No. 44. Document 210 contains the provisions concerning arrest and preliminary detention during the preliminary proceedings. I am quoting from Paragraph 114, Section 1:
"The arrest takes place following a written warrant of arrest issued by the Judge."
I am quoting from Article 114-C:
"Should the warrant of arrest be withdrawn as a. result of the interrogation or should the person in custody not be the person described in the warrant of arrest, the person in custody is to be released."
I am now quoting from Article 115-A:
"While the accused is in presumptive arrest, the authorities have to keep in view at all times whether the continuance of the custody is permissible and necessary."
I am now quoting from Paragraph 124:
"Decisions concerning the presumptive arrest including bail will be made by the trial court."
I am offering this document as Exhibit 45 for identification.
THE PRESIDENT: Let it he marked.
DR. GRUBE: Document 211, on page 21 of the German document book, contains the provisions concerning the interrogation of the accused on the part of the judge during the preliminary proceedings.
I am offering this document as Exhibit 46 for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 172 contains regulations for the judge in charge of the preliminary proceedings on the interrogation of the accused person during preliminary proceedings.
I am offering this document as Exhibit 46, for identification.
THE PRESIDENT: Document 172?
DR. GRUBE: Yes, this is Document 172.
THE PRESIDENT: It should be Exhibit 47.
DR. GRUBE: I beg your pardon; it should be Exhibit 47.
THE PRESIDENT: Let it be marked.
DR. GRUBE: The following document refers to the question as to whether in German criminal law of procedure the accused himself can be a witness in his own case. Document 105, on page 27 of the German document book is an excerpt from the book by Dr. Robert von Hippel "The Criminal Procedure." I quote: "Witnesses or third persons, in contrast to the court and the parties, who are to give evidence at the trial on their material perception based on legally relevant facts."
I now quote from the next paragraph: "Neither can the parties be witnesses: The Public Prosecutor who is questioned as a witness is excluded from the further execution of his office. The plaintiff in a civil action cannot be heard as a witness.
The testimony of the defendant is voluntary, and is not subject to the rules of evidence which govern witnesses."
I offer this document as Exhibit 48, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: The next document is No. 103, on page 28 of the German book. It is an excerpt from the commentary on criminal procedure by Lowe -- Rosenberg. I quote: "No one can be both defendant and witness in the same trial. Therefore, a co-defendant cannot be heard as a witness against another co-defendant."
I offer this document as Exhibit 48, for identification.
THE PRESIDENT: Let it be marked.
DR. GRUBE: Document 208, on page 29 of the German document book, contains provisions about witnesses, in particular about the oath. May I draw the attention of the Tribunal, first of all, to Article 55. I quote: "Every witness can refuse to testify on such questions, the answer to which would expose him, or one of his relatives as designated in Article 52, No. 1 to 3, to the danger of criminal prosecution."
I would further draw the attention of the Tribunal to Article 61. I quote: "The swearing in of witnesses can be omitted if the court so desires. 4. In the case of each witness in reference to answers to questions about such facts which would expose him, his fiancee, his lawful spouse, or any person who is his relative according to Article 52, paragraph 1 No. 3, to the danger of criminal prosecution, or which could be considered as detrimental to his honor. 5. If all members of the court consider the testimony irrelevant and evidently unbelievable, and if, according to their opinion even under oath a relevant and true testimony cannot be expected."